S265314

IN THE CALIFORNIA SUPREME COURT

VALERIE HANEY,
Plaintiff and Petitioner,
v.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA,
COUNTY OF LOS ANGELES,
Respondent,

CHURCH OF SCIENTOLOGY INTERNATIONAL AND

RELIGIOUS TECHNOLOGY CENTER,
Defendants and Real Parties in Interest

Document received by the CA Supreme Court.

SECOND DISTRICT COURT OF APPEAL NO. B307452
LOS ANGELES COUNTY SUPERIOR COURT CASE NO. 19STCV21210
HONORABLE RICHARD J. BURDGE, DEPARTMENT 37

ANSWER TO PETITION FOR REVIEW OF ORDER

DENYING WRIT OF MANDATE

SCHEPER KIM & HARRIS LLP JEFFER MANGELS BUTLER &

*WILLIAM H. FORMAN (BAR NO. 150477)
DAVID C. SCHEPER (BAR NO. 120174)
MARGARET E. DAYTON (BAR NO. 274353)
800 WEST SIXTH STREET, 18TH FLOOR
LOS ANGELES, CA 90017-2701
(213) 613-4655 • FAX: (213) 613-4656
wforman@scheperkim.com
MITCHELL LLP
ROBERT E. MANGELS (BAR NO. 48291)
*MATTHEW D. HINKS (BAR NO. 200750)
1900 AVENUE OF THE STARS, 7TH FLOOR
LOS ANGELES, CALIFORNIA 90067-4308
(310) 203-8080 • FAX: (310) 203-0567
mhinks@jmbm.com

ATTORNEYS FOR DEFENDANT AND REAL ATTORNEYS FOR DEFENDANT AND REAL
PARTY IN INTEREST CHURCH OF PARTY IN INTEREST RELIGIOUS
SCIENTOLOGY INTERNATIONAL TECHNOLOGY CENTER
 CERTIFICATE OF INTERESTED PARTIES

In accordance with Rule 8.208 of the Rules of Court, the

undersigned certifies that they know of no entities that (1) have

an ownership interest of 10% or more in Church of Scientology

International or Religious Technology Center or (2) have a

financial or other interest in this litigation that the Justices

should consider when determining whether to disqualify

themselves.

Real Parties in Interest Church of Scientology

International and Religious Technology Center are corporations.

Document received by the CA Supreme Court.

DATED: November 19, SCHEPER KIM & HARRIS LLP
2020
WILLIAM H. FORMAN
DAVID C. SCHEPER
MARGARET E. DAYTON

By: ~ ~
WILLIAM H. FORMAN

Attorneys for Defendant and Real

Party in Interest Church of
Scientology International

2
DATED: November 19, JEFFER MANGELS BUTLER &
2020 MITCH ELL LLP
ROBERT E. MANGELS
MATTH EW D. HINKS

Attorne ys for Defenda nt and Real

Party in Interest Religious
Technology Center

Document received by the CA Supreme Court.

3
 TABLE OF CONTENTS

Page

I.  INTRODUCTION ........................................................................ 10 

II.  FACTUAL BACKGROUND ...................................................... 13 
III.  PROCEDURAL HISTORY......................................................... 17 
A.  Petitioner’s Lawsuit. ........................................................ 17 
B.  Defendants’ Motions to Compel Arbitration. .............. 18 
C.  Petitioner’s Motion for Reconsideration. ..................... 19 
D.  Petitioner’s Writ Petition. ............................................... 20 
E.  The Court of Appeal’s Summary Denial of the
Writ Petition. ..................................................................... 21 
IV.  ARGUMENT ................................................................................. 21 

Document received by the CA Supreme Court.

A.  There Are No Grounds For Supreme Court
Review. ................................................................................ 21 
1.  The “Impact of the Pandemic on Writ
Deadlines” Issue Is Not Properly
Presented and, Even if It Were, Review
By This Court Is Not Warranted........................ 23 
2.  Petitioner’s “First Amendment” and
Unconscionability Arguments Will Not
Evade Review if The Petition for Review
Is Denied. ................................................................. 27 
3.  Petitioner’s Claim That the Trial Court
Lacked Jurisdiction to Grant the Motions
to Arbitrate Is Not a Basis for Review. ............. 29 
B.  The Court of Appeal’s Denial of the Writ
Petition Is Proper. ............................................................. 31 
C.  The Other Arguments in the Writ Petition Fail
as the Trial Court Properly Compelled
Arbitration. ......................................................................... 42 
V.  CONCLUSION ............................................................................. 49 

4
 TABLE OF AUTHORITIES

Page(s)

Federal Cases

Buckeye Check Cashing, Inc. v. Cardegna,

(2006) 546 U.S. 440 .................................................................... 48

Davis v. Prudential Securities,

(11th Cir. 1995) 59 F.3d 1186 .................................................... 45

Easterly v. Heritage Christian School, Inc.

(S.D. Ind. Aug. 26, 2009) No. 1:08-cv-1714,
2009 WL 2750099 ....................................................................... 44

Elmore v. Chicago & Illinois Midland Ry. Co.,

(7th Cir.1986) 782 F.2d 94 ......................................................... 45

Document received by the CA Supreme Court.

Encore Prods., Inc. v. Promise Keepers,
(D. Colo. 1999) 53 F.Supp.2d 1101 ............................................ 45

Fed. Deposit Ins. Corp. v. Air Florida Sys., Inc.,

(9th Cir.1987) 822 F.2d 833 ....................................................... 44

Gen. Conference of Evangelical Methodist Church v.

Evangelical Methodist Church of Dalton, Georgia, Inc.,
(N.D. Ga. 2011) 807 F.Supp.2d 1291 ......................................... 43

Ortiz v. Hobby Lobby Stores, Inc.,

(E.D. Cal. 2014) 52 F.Supp.3d 1070 .......................................... 43

Our Lady of Guadalupe School v. Morrissey-Berru,

(2020) 140 S.Ct. 2049 ................................................................. 46

Roberts v. AT&T Mobility LLC,

(9th Cir. 2017) 877 F.3d 833 ...................................................... 44

5
State Cases

American Property Management Corp. v. Superior Court,

(2012) 206 Cal.App.4th 491 ....................................................... 37

Alla v. Moursi,
(Minn. Ct. App. 2004) 680 N.W. 569 ......................................... 44

Bensimon v. Superior Court,

(2003) 113 Cal.App.4th 1257 ............................................... 24, 36

Davis v. Kozak,
(2020) 53 Cal.App.5th 897 ......................................................... 47

Dial 800 v. Fesbinder,

(2004) 118 Cal.App.4th 32 ......................................................... 43

Elmora Hebrew Ctr., Inc. v. Fishman,

(N.J. 1991) 125 N.J. 404 ............................................................ 45

Document received by the CA Supreme Court.

Farahani v. San Diego Comm. College Dist.,
(2009) 175 Cal.App.4th 1486 ..................................................... 33

Flannery v. Prentice,
(2001) 26 Cal.4th 572 ................................................................. 36

Frisk v. Superior Court,

(2011) 200 Cal.App.4th 402 ........................................... 10, 22, 26

In re Brandy R.,
(2007) 150 Cal.App.4th 607 ....................................................... 25

Independent Assn. of Mailbox Ctr. Owners, Inc.

v. Superior Court,
(2005) 133 Cal.App.4th 396 ....................................................... 29

Int’l Film Investors v. Arbitration Tribunal of

Directors Guild,
(1984) 152 Cal.App.3d 699 ......................................................... 28

Jenkins v. Trinity Evangelical Lutheran Church,

(Ill. App. 2005) 825 N.E. 2d 1206 .............................................. 44

6
Jimenez v. Superior Court,
(2002) 29 Cal.4th 473 ................................................................. 36

Kao v. Dep’t of Corr. & Rehab.,

(2016) 244 Cal.App.4th 1236 ............................................... 39, 40

Kowis v. Howard,
(1992) 3 Cal.4th 888 ............................................................. 22, 28

Krueger v. Superior Court,

(1979) 89 Cal.App.3d 934 ........................................................... 33

Le Francois v. Goel,
(2005) 35 Cal.4th 1094 ............................................................... 25

Lopez v. Bartlett Care Cntr., LLC,

(2019) 39 Cal.App.5th 311 ................................................... 17, 47

McDermott Will & Emery LLP v. Superior Court,

Document received by the CA Supreme Court.

(2017) 10 Cal.App.5th 1083 ........................................... 24, 26, 34

Medical Bd. of Calif. v. Superior Court,

(1991) 227 Cal.App.3d 1458 ....................................................... 42

Meritplan Ins. Co. v. Superior Court,

(1981) 124 Cal.App.3d 237 ......................................................... 33

Metcalf v. Cnty. of San Joaquin,

(2008) 42 Cal.4th 1121 ............................................................... 27

Nelson v. Superior Court,

(1986) 184 Cal.App.3d 444 ............................................. 26, 31, 33

Omaha Indem. Co. v. Superior Court,

(1989) 209 Cal.App.3d 1266 ....................................................... 28

Paul Blanco’s Good Car Co. Auto Grp. v. Superior Court,

(Oct. 20, 2020) --- Cal.Rptr.3d ----, No. A159623,
2020 WL 6153671 ....................................................................... 25

People v. Garcia,
(2002) 97 Cal.App.4th 847 ................................................... 21, 22

7
People v. Superior Court (Brent),
(1992) 2 Cal.App.4th 675 ........................................................... 32

People ex rel. Owen v. Miami Nation Enterprises,

(2016) 2 Cal.5th 222 ................................................................... 37

Reynolds v. Superior Court,

(1883) 64 Cal. 372 ....................................................................... 31

Santa Clara County Corr. Peace Officers’ Assn., Inc.

v. County of Santa Clara,
(2014) 224 Cal.App.4th 1016 ..................................................... 48

Scott v. Municipal Court,

(1974) 40 Cal.App.3d 995 ........................................................... 33

Sheard v. Superior Court,

(1974) 40 Cal.App.3d 207 ........................................................... 14

Document received by the CA Supreme Court.

Southern Cal. Ch. of Assoc. Builders & Contractors,
Inc. v. Calif. Apprenticeship Council,
(1992) 4 Cal.4th 422 ............................................................. 21, 28

Spivey v. Teen Challenge of Florida, Inc.,

(Fla. App. 2013) 122 So.3d 986 .................................................. 46

Thomson v. Anderson,
(2003) 113 Cal.App.4th 258 ....................................................... 14

United Firefighters of Los Angeles v. City of Los Angeles,

(1991) 231 Cal.App.3d 1576 ................................................. 12, 28

Volkswagen of Amer., Inc. v. Superior Court,

(2001) 94 Cal.App.4th 695 ............................................. 31, 32, 33

State Statutes

Code Civ. Proc. § 1008 ................................................................... 20

Code Civ. Proc. § 1085 ............................................................. 39, 40

Code Civ. Proc. § 1294(a) ............................................................... 29

8
State Rules

Cal. R. Ct. 8.104(a)(1) .............................................................. 32, 33

Cal. R. Ct. 8.108(e) ................................................. 24, 34, 35, 36, 37

Cal. R. Ct. 8.500(b) ......................................................................... 22

Cal. R. Ct. 8.500(b)(1) .................................................................... 26

Cal. R. Ct. 8.500(c) ......................................................................... 11

Cal. R. Ct. 8.500(c)(1) ............................................. 12, 24, 31, 36, 42

Cal. R. Ct. 8.104(a) ......................................................................... 37

Cal. R. Ct. 8.108(e)(2) .................................................................... 35

Document received by the CA Supreme Court.

9
I. INTRODUCTION

Petitioner/Plaintiff Valerie Haney missed the deadline to

file her Petition for Writ of Mandate (“Writ Petition”) seeking

discretionary review of the Trial Court’s Order granting

Defendants’ Motions to Compel Arbitration (“Arbitration Order”).

The Writ Petition, filed 143 days late, was properly denied as

untimely in the Court of Appeal’s discretion. (10/22/2020 Court of

Appeal Order at p.1.) In a desperate effort to obtain Supreme

Court review of the unremarkable summary denial of the

Document received by the CA Supreme Court.

untimely Writ Petition, the Petition for Review asserts

arguments that were never raised in the Court of Appeal and

presses a scurrilous factual narrative based on false – and wholly

unsupported or refuted – allegations. Petitioner’s counsel’s

belatedly-asserted arguments to salvage the untimely Writ

Petition are meritless and present no ground for review by this

Court.

The Court of Appeal’s summary denial of the untimely Writ

Petition does not create precedent. Frisk v. Superior Court (2011)

200 Cal.App.4th 402, 415. Further, the denial applies the well-

settled rule governing the timeliness of petitions for writ of

mandate seeking discretionary review of trial court orders. It

10
does not raise any important question of law. It does not create a

conflict in the uniformity of decisions. Supreme Court review is

not warranted.

Petitioner asserts that this Court should grant review on

three grounds: (1) “lower courts need guidance on the impact of

the pandemic on writ deadlines,” (Petition for Review at 8); (2)

“this Court must answer the First Amendment and

unconscionability questions, which will evade review unless

examined here, (id.)”; and (3) “a trial court lacks jurisdiction to

Document received by the CA Supreme Court.

order a non-believer to participate in ‘Religious Arbitration’”

because it violates the First Amendment, (id. at 24, 25, 32). None

of the asserted grounds is a basis for Supreme Court review.

As to the first ground, Petitioner never argued in the Court

of Appeal that the pandemic had any impact on the Writ Petition

deadline; therefore, this Court should not reach the issue. Cal. R.

Ct. 8.500(c). Moreover, Emergency Rule 9, which Petitioner

claims “impacts” the writ deadline, plainly does not apply to the

Writ Petition. Therefore, the pandemic’s impact on writ deadlines

is not even presented by this case. The Court of Appeal’s

conclusion that the Writ Petition was untimely is correct – and

11
certainly not an abuse of discretion – and no “guidance on the

impact of the pandemic” is needed.

The second ground, that the First Amendment and

unconscionability issues will “evade review,” is incorrect as a

matter of law. “A party does not waive his right to attack the

order [compelling arbitration] by proceeding to arbitration; the

order is reviewable on appeal from a judgment confirming the

award.” (10/22/2020 Court of Appeal Order at p. 2. (quoting

United Firefighters of Los Angeles v. City of Los Angeles (1991)

Document received by the CA Supreme Court.

231 Cal.App.3d 1576, 1582).)

As to the third ground, lack of jurisdiction over the Motion

to Compel Arbitration, Petitioner never made any jurisdictional

argument in either the Trial Court or the Court of Appeal. On

this ground alone the Court should not consider it. Cal. R. Ct.

8.500(c)(1). Further, the Petitioner fabricates this argument

purely to argue grounds for review. Of course courts have

jurisdiction to hear motions to arbitrate. That religious

arbitration is called for does not deprive a court of jurisdiction, as

such agreements are routinely enforced.

///

///

12
II. FACTUAL BACKGROUND

Up until 2017, Petitioner was a life-long member of the

Church of Scientology and chose to live her adult life in the

Church’s religious order, the Sea Org, serving her religion. The

Sea Org order is composed of the most dedicated Scientologists –

individuals who have committed their lives to the volunteer

service of their religion. (1 EP 194 ¶ 4.) As befits a religious

order, Petitioner agreed to submit to Church of Scientology

discipline, serve without pay, and live communally. (1 EP 194-

Document received by the CA Supreme Court.

196.) Part of her commitments to service in the Sea Org included

Petitioner’s execution of the agreements at issue, all of which she

signed when she was over 30 years old. (3 EP 720 (Order).)

Defendants petitioned for arbitration based on five agreements

containing arbitration provisions that Petitioner signed while a

member of the Sea Org (the “Church Agreements”), and one

agreement she signed upon her departure from the Sea Org in

2017 (the “Departure Agreement”). (3 EP 714-717 (Order); 1 EP

41-64, 1 EP 214-234.)

The Petition for Review includes pages and pages of

scurrilous, false, and unsupported “Factual Background.” The

majority of these “facts” are supported only by citation to

13
Petitioner’s Amended Complaint (1 EP 7-39). (See, e.g., Petition

for Review at 9-12 (citing only to Petitioner’s Amended

Complaint); id. at 15-17.) Petitioner’s representation of her

allegations as facts is improper and misleading. An unverified

complaint has “no evidentiary value,” Thomson v. Anderson

(2003) 113 Cal.App.4th 258, 271, and “could not serve as an

affidavit,” Sheard v. Superior Court (1974) 40 Cal.App.3d 207,

212.

Further, the bulk of Petitioner’s “facts” are entirely

Document received by the CA Supreme Court.

irrelevant to the question before this Court: the summary denial

of Petitioner’s untimely Writ Petition. Petitioner improperly

included them to prejudice the Court against Defendants and

sway the Court to excuse her unjustified failure to timely file the

Writ Petition. Defendants will not burden the Court with a

refutation and response to each of Petitioner’s irrelevant,

unsupported allegations. Nonetheless, it bears noting that the

majority of Petitioner’s “facts” actually presented in connection

with the Arbitration Order are refuted by the evidentiary

record – as determined by the Trial Court.

For example, the Petition for Review falsely claims that

during her time in the Sea Org, Petitioner was “abused, trapped,

14
and trafficked.” (Petition for Review at 10.) Her Petition for

Review presses the false narrative that “[a]t ‘all times,’

Defendants ‘verbally, physically, and/or psychologically

restricted’ Ms. Haney from leaving Gold Base and ‘saw to it’ that

Ms. Haney had ‘little to no contact with anyone outside

Scientology.’” (Petition for Review at 11.) Yet, the Trial Court

expressly rejected Petitioner’s claim that during her time in the

Sea Org she was “confined” or a “prisoner.” (3 EP 719-20.) Based

on unchallenged and undisputed evidence submitted by

Document received by the CA Supreme Court.

Defendants, the Trial Court found that during her time in the

Sea Org “Plaintiff travelled with location shoot teams all over

Southern California ([1 EP 74] ¶ 23), she had a car and a phone

and would be totally on her own at times ([1 EP 74] ¶ 24), was in

a loving marriage, ([1 EP 75] ¶ 25), served as a host for social

affairs with the non-Scientology community ([1 EP 75] ¶ 28), and

vacationed in Oregon, Florida and Nevada and returned to Sea

Org ([1 EP 75] ¶ 29).” (3 EP 719-20.)

As to Petitioner’s claims that she was coerced or “made to

sign” the Agreements, the Trial Court specifically found that

Petitioner’s declaration in support of these claims “is conclusory

and lacks sufficient factual statements to refute Defendants’

15
showing.” (3 EP 720.) With regard to her assertions that she was

forced to sign the Departure Agreement, “did not know the

contents of any of the documents,” and “‘signed any document

that was given’ to her because she ‘just wanted it to be over and

to get out of there,’” (Petition for Review at 16), the Trial Court

found that “the transcript of [Plaintiff] signing the Departure

Agreement contradicts her declaration,” (3 EP 720 (emphasis

added)).1 In addition to demonstrating that Petitioner read and

understood the terms of the Departure Agreement, the transcript

Document received by the CA Supreme Court.

shows that Petitioner referred to a term in her prior agreements

and negotiated its modification. (1 EP 82 ¶ 10; 1 EP 107; 1 EP

129-30 ¶ 9.E.; 1 EP 121 ¶ 2.H.) Her change was accepted. (Id.)

This evidence refutes Petitioner’s claims that she was not given

the opportunity to read or understand the Agreements, did not

know what she was signing, (Petition for Review at 12), and

would have signed any document out of desperation, (Petition for

Review at 16).

1Defendants submitted a transcript of the meeting in which

Petitioner signed the Departure Agreement in support of their
Motions to Compel Arbitration. (1 EP 87-116.) Petitioner never
disputed the accuracy of the transcript.

16
 Despite these binding evidentiary findings by the Trial

Court,2 the Petition for Review continues the false narrative,

based on unsupported allegations and disproven evidence, in an

improper effort to bias this Court against Defendants and attain

review of a mundane denial of an untimely writ petition.

III. PROCEDURAL HISTORY

A. Petitioner’s Lawsuit.

Petitioner filed her Amended Complaint on September 30,

2020. Contrary to the statements in the Petition for Review, the

Document received by the CA Supreme Court.

Amended Complaint does not contain any cause of action for

sexual abuse or child abuse. The allegation of “trafficking” relates

to Petitioner’s service in the Sea Org while an adult and her

complaint that – consistent with numerous agreements she

signed as an adult, (see, e.g., (1 EP 194-196)) – she served as a

minister without expectation of pay and subject to the constraints

of the Sea Org.

///

///

2Lopez v. Bartlett Care Cntr., LLC (2019) 39 Cal.App.5th 311,

320 (“[T]he resolution of an evidentiary conflict is within the sole
province of the trier of fact.”).

17
 B. Defendants’ Motions to Compel Arbitration.

Defendants filed their Motions to Compel Arbitration on

December 20, 2019 based on the Church Agreements and the

Departure Agreement. (3 EP 714-717 (Order); 1 EP 41-64, 1 EP

214-234.) In opposition to the motions, Petitioner argued chiefly

that basic principles of duress and unconscionability rendered the

agreements unenforceable. (2 EP 485-509.) Petitioner never

argued in her Opposition to the Motions to Compel that

Scientology arbitration was a “religious ritual” or that

Document received by the CA Supreme Court.

participating in a Scientology arbitration would violate her First

Amendment rights. (2 EP 485-509; 3 EP 565-66.) She raised those

arguments for the first time in her reconsideration motion, (4 EP

942), the denial of which was not challenged in the Writ Petition.

The Motions to Compel Arbitration were heard on January

30, 2020. After the argument of Counsel, (3 EP 651-668), the

Trial Court granted the Motions to Compel by Minute Order, (3

EP 670-84), and directed a written order be prepared, (3 EP 682).

The Trial Court signed and filed the Arbitration Order on

February 18, 2020. (3 EP 707-09.) Defendants served Petitioner

with a notice of entry of the Arbitration Order on February 20,

2020. (3 EP 704-25.)

18
 In the Arbitration Order, the Trial Court considered the

evidence and argument of both sides. The Trial Court rejected

Petitioner’s claims of procedural and substantive

unconscionability, specifically finding that Petitioner’s

declaration as to the circumstances of her executing the Church

Agreements was “conclusory and lacks sufficient factual

statements to refute Defendants’ showing.” In connection with

the Departure Agreement, the Trial Court found that “the

transcript of her signing the Departure Agreement

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contradicts her declaration.” (3 EP 720 (emphasis added).)

C. Petitioner’s Motion for Reconsideration.

On March 3, 2020, Petitioner filed a Motion for

Reconsideration of the Arbitration Order in the Trial Court. (4

EP 731.) The Motion for Reconsideration argued for the first time

that Petitioner’s participation in Scientology arbitration violated

her First Amendment rights. Petitioner did not explain her

failure to previously raise the argument. (4 EP 748-49.)

On August 11, 2020, the Trial Court denied the Motion for

Reconsideration (“Reconsideration Order”). (7 EP 1724.) The

Trial Court ruled that “Plaintiff has failed to demonstrate . . .

19
new facts, circumstances or law within the meaning of [Code of

Civil Procedure] section 1008.” (7 EP 1729.)

D. Petitioner’s Writ Petition.

On September 10, 2020, Petitioner filed the Writ Petition

challenging only the Arbitration Order – and not the

Reconsideration Order. The Writ Petition argued that the

Arbitration Order violated Petitioner’s First Amendment rights,

and the Trial Court erred in compelling arbitration because the

Agreements were unconscionable. (Writ Petition at 28-40.) In

Document received by the CA Supreme Court.

opposition, Defendants principally argued the Writ Petition was

untimely and did not satisfy the requirements for extraordinary

writ relief. (Defs.’ Opp. to Writ Petition at 36-55.)3

Regarding the Writ Petition’s timeliness, Petitioner argued

it was timely under California Rule of Court 8.108, subdivision

(e) because it was filed within 30 days of the Reconsideration

Order and that the Court of Appeal had discretion to hear an

untimely Writ Petition. (Pet.’s Reply at 4; Writ Petition at 19.)

3 Defendants’ Opposition also noted that Petitioner’s arguments

lacked merit and the First Amendment argument was not
properly raised below. (Defs.’ Opp. to Writ Petition at 56-78.)
However, Defendants indicated they would fully brief the
substantive issues on the merits if the Court of Appeal intended
to reach them. (Id. at 59.)

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Neither the Writ Petition nor Petitioner’s Reply Brief argued that

the Writ Petition was timely due to Emergency Rule 9 or the

pandemic. (See Writ Petition & Pet.’s Reply generally.) Indeed,

the words “pandemic,” “COVID,” and “Emergency Rule 9” do not

appear on any page of the Writ Petition or Petitioner’s Reply.

E. The Court of Appeal’s Summary Denial of the

Writ Petition.

On October 22, 2020, the Court of Appeal summarily

denied the Writ Petition “as untimely.” (10/22/2020 Second

Document received by the CA Supreme Court.

District Order pp. 1-2.) Presiding Justice Rubin separately stated

“I would deny the petition only on the ground that petitioner has

an adequate remedy on appeal.” (Id.) The Petition for Review

seeks Supreme Court review of this summary denial.

IV. ARGUMENT

A. There Are No Grounds For Supreme Court

Review.

“[T]he Supreme Court generally acts only where necessary

to secure uniformity of decision or to settle an important question

of law in matters of statewide impact.” People v. Garcia (2002) 97

Cal.App.4th 847, 854; see also Southern Cal. Ch. of Assoc.

Builders & Contractors, Inc. v. Calif. Apprenticeship Council

21
(1992) 4 Cal.4th 422, 431 n.3 (in bank). As Petitioner appears to

contend is relevant here, “[t]he Supreme Court may order review

of a Court of Appeal decision: (1) When necessary to secure

uniformity of decision or to settle an important question of law;

(2) When the Court of Appeal lacked jurisdiction. . .” Cal. R. Ct.

8.500(b). Unpublished memorandum opinions will rarely rise to

the level of warranting review by this Court. Garcia, supra, 97

Cal.App.4th at 854 (“Issues of this scale are not appropriate for

memorandum dispositions, and thus likely will not be candidates

Document received by the CA Supreme Court.

for Supreme Court attention.”). A fortiori, summary denials of

writ petitions, which neither create precedent, Frisk, supra, 200

Cal.App.4th at p. 415, nor the law of the case as between the

parties, Kowis v. Howard (1992) 3 Cal.4th 888, 891, do not

require this Court’s review.

Petitioner claims that review is warranted because: (1)

“lower courts need guidance on the impact of the pandemic on

writ deadlines,” (Petition for Review at 8); (2) “this Court must

answer the First Amendment and unconscionability questions,

which will evade review unless examined here, (id.)”; and (3) “a

trial court lacks jurisdiction to order a non-believer to participate

in ‘Religious Arbitration’” because it violates the First

22
Amendment, (id. at 24, 25, 32). None of these arguments warrant

review.

1. The “Impact of the Pandemic on Writ

Deadlines” Issue Is Not Properly

Presented and, Even if It Were, Review By

This Court Is Not Warranted.

The Petition for Review incorrectly claims it presents an

“important question of law”: “May a court reject a common law

writ petition as untimely where the order denying

Document received by the CA Supreme Court.

reconsideration (which necessitated the petition)4 was delayed for

five months due to a pandemic that closed the courts?” (Petition

for Review at 19.) The issue is not properly presented here and

does not warrant review.

First, Petitioner never argued in the Court of Appeal that

the pandemic or Emergency Rule 9 had any impact on the Writ

Petition deadline. The words “pandemic” or “COVID” or

“Emergency Rule 9” do not appear on any page of the Writ

4This is false. The Writ Petition challenged the Trial Court’s

Arbitration Order, not the Trial Court’s Reconsideration Order.
(See Writ Petition at 10 ¶ 1.) The Reconsideration Order did not
“necesitate[] the petition.”

23
Petition or Reply. For this reason alone, the Court should not

consider the argument. See Cal. R. Ct. 8.500(c)(1).

Second, the Trial Court’s delay in adjudicating

Petitioner’s Motion for Reconsideration is irrelevant, and

therefore does not present “an important question of law.” The

Writ Petition challenged only the Trial Court’s Arbitration

Order, not the Reconsideration Order. (See Writ Petition at 10

¶ 1.) The time to file a writ petition runs from the notice of the

challenged order. McDermott Will & Emery LLP v. Superior

Document received by the CA Supreme Court.

Court (2017) 10 Cal.App.5th 1083, 1099-1100. And, the filing of a

Motion for Reconsideration does not impact the deadline to file a

Writ Petition. Bensimon v. Superior Court (2003) 113 Cal.App.4th

1257, 1259 (addressing a statutory writ); see also Cal. R. Ct.

8.108(e).

Third, Petitioner argues that the Trial Court’s delay in

adjudicating her Motion for Reconsideration created a

“jurisdictional limbo – with two courts having jurisdiction to

grant relief” while the “reconsideration motion was pending.”

(Petition for Review at 22, 20.) Again, the argument was not

presented to the Court of Appeal. More importantly, Petitioner’s

so-called “jurisdictional conundrum” exists any time a writ

24
petition is filed. While a writ is pending, both the trial court

and the appellate court have jurisdiction over the matter. In re

Brandy R. (2007) 150 Cal.App.4th 607, 609-10 (unlike an appeal,

a writ does not stay further proceedings in the trial court

embraced in or affected by the judgment or order from which the

writ it taken); Paul Blanco’s Good Car Co. Auto Grp. v. Superior

Court (Oct. 20, 2020) --- Cal.Rptr.3d ----, No. A159623, 2020 WL

6153671, at *4, *5 (while writ was pending and after OSC had

been issued, the trial court had jurisdiction to vacate and reverse

Document received by the CA Supreme Court.

the challenged order); see also Le Francois v. Goel (2005) 35

Cal.4th 1094, 1106-07 (a court can reconsider an interim order on

its own motion at any time). This basic, settled fact regarding

writ petitions does not create a “jurisdictional conundrum” that

somehow renders the Trial Court’s delay in adjudicating the

Motion for Reconsideration relevant, or warrant review by this

Court.

Fourth, Petitioner claims review is required due to

“conflicts” with the “pandemic rules.” (Petition for Review at 19.)

No conflict exists. Principally, no “conflict” exists because the

Court of Appeal’s untimeliness determination is correct.

Emergency Rule 9 does not affect the Writ Petition deadline.

25
Section VI.B., infra. And, despite its claim that “the Second

District’s Order creates a conflict in how the timeliness of writ

petitions delayed by the pandemic are evaluated by reviewing

courts,” (Petition for Review at 20), the Petition for Review

identifies no “conflicting” decision. Moreover, the Petition does

not explain how a summary denial, which does not create

precedent, Frisk, supra, 200 Cal.App.4th at p. 415, could present

a “uniformity of decision” issue to be addressed by this Court, see

Cal. R. Ct. 8.500(b)(1).

Document received by the CA Supreme Court.

Finally, the Petition claims the Court of Appeal Order

“conflicts with other published decisions that hold delayed writs

are nonetheless timely.” Yet, the summary denial is not

precedential, Frisk, supra, 200 Cal.App.4th at 415, and therefore

cannot conflict with “other published decisions.” Furthermore,

the decision to grant or deny a writ petition lies within the

discretion of the appellate court. See Nelson v. Superior Court

(1986) 184 Cal.App.3d 444, 450. The fact that one appellate court

might conclude that a delay beyond the 60-day period is

unreasonable on the particular facts before it, does not create a

“conflict” with a decision by another appellate court faced with an

entirely different set of facts. Compare McDermott Will & Emery

26
LLP, supra, 10 Cal.App.5th at 1100 (considering issue that was

untimely raised because it was a “predicate issue” that was

“inextricably intertwined” with the order that was timely

challenged by the writ) with Krueger v. Superior Court (1979) 89

Cal.App.3d 934, 938 (rejecting petition as untimely due to five

and one-half month delay).

2. Petitioner’s “First Amendment” and

Unconscionability Arguments Will Not

Evade Review if The Petition for Review

Document received by the CA Supreme Court.

Is Denied.

Next, the Petition for Review argues that “this Court must

answer the First Amendment and unconscionability questions,

which will evade review unless examined here.” (Petition for

Review at 8.) First, Petitioner’s First Amendment and

unconscionability arguments were not reached by the Court of

Appeal, which properly exercised its discretion in denying the

Writ Petition as untimely. (10/22 Second District Order, pp.1-2.)

There is no error in the Court of Appeal declining to reach

arguments presented in an untimely, discretionary writ. Second,

these “fact-specific issue[s] are not worthy of review.” See Metcalf

v. Cnty. of San Joaquin (2008) 42 Cal.4th 1121, 1129; see also

27
Southern Cal. Ch. of Assoc. Builders & Contractors, Inc., supra, 4

Cal.4th at 431 n.3 (in bank) (“[T]his court limits its review to

issues of statewide importance”). Third, the claim is incorrect as

a matter of law. As the Court of Appeal Order states, “A party

does not waive his right to attack the order [compelling

arbitration] by proceeding to arbitration; the order is reviewable

on appeal from a judgment confirming the award.” (10/22 Second

District Order, p.2 (citing United Firefighters of Los Angeles,

supra, 231 Cal.App.3d at p. 1582)); see also Kowis, supra, 3

Document received by the CA Supreme Court.

Cal.4th at 898 (a summary denial “does not establish law of the

case, the parties can await a later appeal to present that and all

other issues”).5 The Petition for Review admits that “five appeals

(including unpublished cases) reversed an order compelling

arbitration after the arbitration was concluded and appealed.”

(Petition for Review at 28.) Indeed, while the Legislature has

5Precisely for this reason, Presiding Justice Rubin indicated that

he “would deny the petition only on the ground that petitioner
has an adequate remedy on appeal.” (10/22/2020 Court of Appeal
Order, p. 2.) Accordingly, even if Petitioner had timely filed the
Writ Petition, it did not meet the requirements for extraordinary
relief. See Omaha Indem. Co. v. Superior Court (1989) 209
Cal.App.3d 1266, 1272 (discussing the requirements for writ
review); Int’l Film Investors v. Arbitration Tribunal of Directors
Guild (1984) 152 Cal.App.3d 699, 703.

28
specifically made orders denying a petition to compel arbitration

appealable, Code Civ. Proc. § 1294(a), orders compelling

arbitration are not immediately appealable, Int’l Film Investors v.

Arbitration Tribunal of Directors Guild (1984) 152 Cal.App.3d

699, 703. If accepted, Petitioner’s argument would require

Supreme Court or writ review of every order compelling

arbitration in which the opposing party challenged the

enforceability of the arbitration clause – on grounds of

unconscionability, the First Amendment, or otherwise. Such a

Document received by the CA Supreme Court.

result is inconsistent with the Legislature’s choice not to make

such orders appealable and the standards for writ review of

orders compelling arbitration. See Independent Assn. of Mailbox

Ctr. Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396,

405 (writ review of orders compelling arbitration is available only

in “unusual circumstances” or “exceptional situations”).

3. Petitioner’s Claim That the Trial Court

Lacked Jurisdiction to Grant the Motions

to Arbitrate Is Not a Basis for Review.

Petitioner claims that review is warranted because “a trial

court lacks jurisdiction to order a non-believer to participate in

‘Religious Arbitration’” because it violates the First Amendment.

29
(Petition for Review at 24, 32.) Petitioner failed to make any

argument at all regarding the First Amendment in the Trial

Court in opposition to the Motions to Compel. (2 EP 486-509, 3

EP 650-668.) Further compounding the issue, when Petitioner

improperly raised her First Amendment argument in the Court of

Appeal in the Writ Petition, she did not argue the issue was

“jurisdictional.” Indeed, she presents no argument or supporting

authority for her claim that the Trial Court “lacked jurisdiction”

to hear the Motions to Compel Arbitration. (See generally Petition

Document received by the CA Supreme Court.

for Review at 24-25.) Her framing of the supposed “jurisdictional”

issue – that the trial court lacked jurisdiction to “order[her] to

participate” in religious arbitration – is dishonest. She has not

been “ordered” to do anything. Rather, the Trial Court granted

motions seeking orders that she may not pursue her claims in

civil court as she agreed to arbitrate them. (3 EP 711-21.) She

now decides whether or not to press her claims in an ecclesiastical

setting.

Moreover, the argument is without legal basis. Courts

routinely enforce religious arbitration agreements. Section IV.C.,

infra. The mundane fact is that every day persons enter into

contracts that limit their First Amendment rights, whether they

30
be confidentiality agreements, non-disparagement agreements, or

even employment contracts that require the employee to work on

his or her sabbath. This Court should not grant review based on

an unsubstantiated claim – not raised below – that the Petition

for Review presents a “jurisdictional” issue. Cal. R. Ct.

8.500(c)(1).

There is no basis for review by this Court. The Court

should deny the Petition for Review.

B. The Court of Appeal’s Denial of the Writ

Document received by the CA Supreme Court.

Petition Is Proper.

Even if the Court were to grant review, relief should be

denied as there is no merit to the Writ Petition. The Court of

Appeal did not abuse its discretion in denying it.

“As a general rule, a writ petition should be filed within the

60-day period that is applicable to appeals.” Volkswagen of Amer.,

Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701 (citing

Reynolds v. Superior Court (1883) 64 Cal. 372, 373)). Appellate

courts have discretion to deny a writ petition that has not been

sought within the 60-day time limit. See Nelson, supra, 184

Cal.App.3d at p. 450 (“A petition for extraordinary writ may be

considered at any time, however it is properly denied in the

31
discretion of the court when it has not been sought within the

time which an appeal could have been sought had the order been

appealable.”); People v. Superior Court (Brent) (1992) 2

Cal.App.4th 675, 682 (although appellate courts do have

“discretion to hear a writ petition beyond the 60-day time limit

. . . it will not normally be exercised”). Accordingly, the decision to

deny a petition as untimely should be reviewed for abuse of

discretion. See id.

The 60-day period to file a writ petition begins to run when

Document received by the CA Supreme Court.

the appealing party is served with the notice of entry of the

challenged order. Cal. R. Ct. 8.104(a)(1). Absent “‘extraordinary

circumstances’ justifying the delay,” an appellate court should

deny a writ petition filed after the 60-day period. Volkswagen of

Amer., Inc., supra, 94 Cal.App.4th at p. 701.

The Writ Petition sought a writ of mandate to compel the

Trial Court to vacate the Arbitration Order. (Writ Petition at 10

¶ 1.) Petitioner was served with the notice of entry of the

Arbitration Order on February 20, 2020. (3 EP 704-25.)

Therefore, February 20, 2020 is the date triggering the 60-day

period within which to timely file the Petition. Volkswagen,

32
supra, 94 Cal.App.4th at p. 701; Cal. R. Ct. 8.104(a)(1). That 60-

day period ended on April 20, 2020.

The Writ Petition was filed on September 10, 2020, two

hundred and three (203) days after February 20, 2020, which

is 143 days late. The Petition provided no explanation at all

for the delay, much less “extraordinary circumstances” that

justify it. Volkswagen, supra, 94 Cal.App.4th at p. 701. “[U]nless

the delay is satisfactorily explained,” “delay in seeking a writ of

review beyond the period established for appeal from appealable

Document received by the CA Supreme Court.

orders is a sufficient reason for the higher court to refuse the

prerogative writ.” Scott v. Municipal Court (1974) 40 Cal.App.3d

995, 997 (emphasis added).6 Because the Writ Petition was

untimely, the Court of Appeal had discretion to deny it. Nelson,

supra, 184 Cal.App.3d at p. 450; Krueger, supra, 89 Cal.App.3d at

6 Without citing any supporting facts, the Petition for Review

asserts that “there is no prejudice and the delay is not
unreasonable.” (Petition for Review at 23.) Where, as here, the
delay is not explained, appellate courts need not consider factual
arguments regarding prejudice. Scott, supra, 40 Cal.App.3d at p.
997. In addition, Petitioner’s cited authority applies the doctrine
of laches, not the 60-day rule, in assessing timeliness. (Petition
for Review at 23 (citing Farahani v. San Diego Comm. College
Dist. (2009) 175 Cal.App.4th 1486, 1489, 1494 & Meritplan Ins.
Co. v. Superior Court (1981) 124 Cal.App.3d 237, 241).) In any
event, in Opposition to the Writ Petition, Defendants
demonstrated prejudice. (Defs.’ Opp. to Writ Petition at 40-41.)

33
938 (“The delay of some 105 days past the period of 60 days for

filing a notice of appeal is an indication that the delay is an

unreasonable one.”).

The Petition for Review still provides no explanation for

Petitioner’s delay in filing the Writ Petition and never argues

that under the facts and circumstances of this case, the Court of

Appeal abused its discretion. Nonetheless, rather than explain

the delay, the Petition for Review argues the Writ Petition was

timely for two reasons: (1) the Writ Petition was filed “within 30

Document received by the CA Supreme Court.

days of the order denying reconsideration. (CRC 8.108(e))”,

(Petition for Review at 20); and (2) the deadline to file the Writ

Petition was extended by Petitioner’s filing of the Motion for

Reconsideration and Emergency Rule 9, (Petition for Review at

21). Neither argument has merit.

The Petition for Review argues that “[t]he writ petition was

filed on September 10, which was within 30 days of the order

denying reconsideration. (CRC 8.108(e).)” (Petition for Review at

20.) This is irrelevant because the Writ Petition did not challenge

the Reconsideration Order, it challenged the Arbitration Order.

(See Petition for Review at 10 ¶ 1.) The time to file a writ petition

runs from the notice of the challenged order. McDermott Will &

34
Emery LLP, supra, 10 Cal.App.5th at 1099-1100. As set forth

above, notice of the challenged order, the Arbitration Order, was

served on February 20, 2020. (3 EP 704-25.)

Next, the Petition argues for the first time that “the filing

of a motion for reconsideration extends the deadline for a writ by

analogy to Rule 8.108(e). Thus, the earliest of deadlines under

CRC Rule 8.108(e)(2) was June 1, which was ‘90 days after the

first motion to reconsider was filed’ on March 3. And Emergency

Rule 9 (above) extended it four more months from June 1 to

Document received by the CA Supreme Court.

October 1.” (Petition for Review at 21.) To find the Writ Petition

was timely based on this argument, the Court would have to find

that (1) the argument that was never raised in the Court of

Appeal, should be considered by this Court, which it should not;

(2) filing a motion for reconsideration extends the deadline to file

a writ petition, which it does not; and (3) Emergency Rule 9

applies to appellate deadlines, such as the deadline to file a writ

petition seeking discretionary review of a trial court decision,

which it does not. For the Writ Petition to be timely, Petitioner

would have to defeat all three of these arguments; she cannot

overcome any of them.

35
 The newly-minted timeliness argument was never

presented to the Court of Appeal. Therefore, it should not be

considered here. Cal. R. Ct. 8.500(c)(1); Jimenez v. Superior Court

(2002) 29 Cal.4th 473, 481; Flannery v. Prentice (2001) 26 Cal.4th

572, 591. Indeed, Petitioner cannot meet her burden to show that

the Court of Appeal abused its discretion in failing to consider an

argument that she never presented.

Even if considered, the argument is meritless. While filing

a motion for reconsideration of an “appealable order” extends the

Document received by the CA Supreme Court.

time to file an appeal, Cal. R. Ct. 8.108(e), filing a motion for

reconsideration does not extend the time to file a writ petition.

Bensimon, supra, 113 Cal.App.4th at p. 1259 (addressing a

statutory writ); see also Cal. R. Ct. 8.108(e) (“Motion to reconsider

an appealable order [¶] If any party serves and files a valid

motion to reconsider an appealable order . . . the time to

appeal from that order is extended . . .”) (emphasis added). The

Petition for Review’s contention that filing a motion for

36
reconsideration extends the deadline to file a writ petition is

completely unsupported.7

But even if California Rule of Court 8.108(e) did apply to

writ petitions, the Writ Petition deadline under Rule 8.108(e) was

June 1, 2020. (Petition for Review at 21 (citing CRC Rule 8.108(e)

and stating “the earliest of the deadlines” was June 1).)8 The

Petition was filed on September 10, 2020. Even if Rule 8.108(e)

applies, the Petition is 101 days late.

Document received by the CA Supreme Court.

7 Petitioner claims that “the filing of a motion for reconsideration
extends the deadline for a writ by analogy to Rule 8.108(e).”
(Petition for Review at 21.) Yet, the case Petitioner cites in
support, American Property Management Corp. v. Superior Court,
does not apply California Rule of Court 8.108(e) or discuss the
filing of a motion for reconsideration’s impact on the deadline to
file a writ. (2012) 206 Cal.App.4th 491, 499 (abrogated on other
grounds in People ex rel. Owen v. Miami Nation Enterprises
(2016) 2 Cal.5th 222, 242-44). American Property Management
Corp. applies California Rule of Court 8.104(a), the general rule
on the time to file a notice of appeal, to the deadline to file a writ.
8 California Rule of Court 8.108(e) states “[i]f any party serves
and files a valid motion to reconsider an appealable order . . . the
time to appeal from that order is extended for all parties until
the earliest of:” (1) 30 days after service of an order denying the
motion or a notice of entry of that order; (2) 90 days after the first
motion to reconsider is filed; or (3) 180 days after entry of the
appealable order. Cal. R. Ct. 8.108(e) (emphasis added). Here, the
earliest deadline of Rule 8.108(e) is 90 days after the motion to
reconsider was filed. Ninety days after Petitioner filed her Motion
for Reconsideration is June 1, 2020. (4 EP 732.)

37
 Petitioner tries to bridge this 101-day gap by asserting that

Emergency Rule 9 extends the Petition deadline. It does not.

Emergency Rule 9, subdivision (b) provides:

Emergency rule 9. Tolling statutes of

limitations for civil causes of action

...

(b) Tolling statutes of limitations of 180 days or

less

Notwithstanding any other law, the statutes of

limitations and repose for civil causes of action that
are 180 days or less are tolled from April 6, 2020
until August 3, 2020.

Document received by the CA Supreme Court.

Emergency R. 9(b). By its plain terms, Emergency Rule 9 applies

to “statutes of limitations and repose for civil causes of action.”

Id. Therefore, it does not apply to the 60-day deadline to file the

Writ Petition at issue here.

The Writ Petition at issue is a non-statutory writ petition

seeking discretionary review of a trial court decision. The Parties

agree that such a writ petition is governed by the “rule of thumb”

that it “should be filed in the same 60-day period that applies to

appeals.” (Petition for Review at 21.) The 60-day rule is not a

statute of limitations or repose, as it does not govern the time for

“commencing civil actions”: “The 60-day rule [for writ petitions] is

not included within the code sections governing the time for

38
commencing civil actions.” Kao v. Dep’t of Corr. & Rehab. (2016)

244 Cal.App.4th 1236, 1332. “Rather it is a judicially created rule

used presumptively by appellate courts to assess the timeliness of

nonstatutory writ petitions seeking discretionary review of trial

court decisions.” Id. Because the 60-day rule is not a statute of

limitations or a statute of repose, it is not extended by – or

otherwise affected by – Emergency Rule 9, which pertains only to

tolling “the statutes of limitations and repose for civil causes of

action.”

Document received by the CA Supreme Court.

The Petition for Review seeks to sow confusion by citing to

the Advisory Committee Comment stating, “‘Emergency rule 9 is

intended to apply broadly to toll any statute of limitations on the

filing of a pleading in court asserting a civil cause of action,’

which ‘includes special proceedings,’ ‘including mandamus

actions under’ CCP § 1085, which governs the issuance of a ‘writ

of mandate’.” (Petition for Review at 20.) The argument relies on

a mischaracterization of the Writ Petition here.

Some, but not all, writs of mandate commence a civil

proceeding “to compel the performance of a legally required act,”

and such a petition “is for traditional mandamus under section

1085.” Kao, supra, 244 Cal.App.4th at 1331-32. Writs of mandate

39
under section 1085 that commence civil proceedings have

statutes of limitations that apply to them, id.,9 and are not

subject to the 60-day rule applicable to writs seeking

“discretionary review of trial court decisions,” id. at 1333.

Emergency Rule 9 applies to this type of writ of mandate (that

commences a civil action and has an applicable statute of

limitations), as the Advisory Committee Comment makes clear:

“Emergency Rule 9 is intended to apply broadly to toll any

statute of limitations on the filing of a pleading in court

Document received by the CA Supreme Court.

asserting a civil cause of action,” including mandamus

actions under Section 1085. Emergency R. 9, Advisory Comm.

Comment (emphasis added). The Advisory Committee Comment

does not indicate that Emergency Rule 9 tolls the running of the

60-day rule to file a writ of mandate for discretionary review of a

trial court decision, which is not a statute of limitations or a

statute of repose, but rather akin to an appellate deadline. See

Kao, supra, 244 Cal.App.4th at 1333. Indeed Emergency Rule 9 –

9 “The statute of limitations applicable to a writ of mandamus

[commencing a civil action] under section 1085 depends upon the
nature of the obligation sought to be enforced.” Id. at 1332. A writ
of mandate commencing a civil action, is governed by the statute
of limitations applicable to “the nature of the underlying right or
obligation to be enforced.” Id.

40
which expressly applies to “statutes of limitations” – does not

modify or apply to deadlines for seeking any form of appellate

relief. Moreover, Emergency Rule 9 is irrelevant for the

additional reason that a writ petition filed in the Court of Appeal

seeking discretionary review of a trial court order does not allege

a “cause of action.”

And if another nail in the coffin were necessary, even

application of Emergency Rule 9 would not make the Writ

Petition timely. The deadline to file the Writ Petition was April

Document received by the CA Supreme Court.

20, 2020. Emergency Rule 9 provides for tolling of the statute of

limitations for the period from April 6, 2020 until August 3, 2020.

Emergency R. 9(b). On April 6, 2020, when the tolling began,

fourteen days of the 60-day period remained to file the Writ

Petition. Emergency Rule 9’s tolling period ended on August 3,

2020; therefore, the clock would resume running on August 3,

2020.10 Fourteen days from August 3, 2020 is August 17, 2020.

The Writ Petition was filed on September 10, 2020. Therefore,

10Plaintiff’s Petition for Review incorrectly claims that

“Emergency Rule 9 extended the statutes of limitations by 4-6
months due to the pandemic, granting a four-month extension if
the statute of limitations was 180 days or less.” (Petition for
Review at 19.) This is unsupported by the plain language of
Emergency Rule 9.

41
even if Emergency Rule 9 applied to writ petitions, Plaintiff’s

Writ Petition is untimely.

C. The Other Arguments in the Writ Petition Fail

as the Trial Court Properly Compelled

Arbitration.

While the Court of Appeal denied the Writ Petition on

timeliness grounds, Petitioner argues the Trial Court’s

Arbitration Order is incorrect because compelling religious

arbitration violates the First Amendment, (Petition for Review at

Document received by the CA Supreme Court.

24-27, 32), and the agreements were unenforceable because they

are unconscionable, (id. at 29-31).

This Court should not consider these issues because (1)

they present no basis for Supreme Court review, Section IV.A.,

supra; (2) the Court of Appeal did not reach them; and (3) the

First Amendment argument was not raised in the Trial Court

and should not be considered by the Court of Appeal, Medical Bd.

of Calif. v. Superior Court (1991) 227 Cal.App.3d 1458, 1462, or

this Court, Cal. R. Ct. 8.500(c)(1). As alternative relief, Petitioner

summarily requests “grant and transfer ordered” without

providing any argument or authority in support of this remedy.

(Petition for Review at 8, 32.) Nonetheless, a grant and transfer

42
order is not warranted because Petitioner’s contentions are

meritless, as briefly described below.11

Petitioner’s argument that the First Amendment prohibits

a trial court from compelling religious arbitration is contrary to

established law.

 Courts routinely uphold arbitration agreements

requiring resolution of disputes in ecclesiastical

courts and governed by religious principles. See,

e.g., Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 50

Document received by the CA Supreme Court.

(affirming enforceability of judgment to be rendered in

religious arbitration where arbitrators were rabbis and

decision would be based on Jewish law); Ortiz v. Hobby

Lobby Stores, Inc. (E.D. Cal. 2014) 52 F.Supp.3d 1070

(enforcing employer/employee arbitration under the

Institute for Christian Conciliation’s Rules of Procedure

for Christian Conciliation); Gen. Conference of

Evangelical Methodist Church v. Evangelical Methodist

Church of Dalton, Georgia, Inc. (N.D. Ga. 2011) 807

F.Supp.2d 1291, 1294 (enforcing church rules that

11Should the Court grant review, Defendants will file a full brief
on the merits.

43
 disputes should be resolved “by means of Christian

conciliation, mediation or arbitration”); Easterly v.

Heritage Christian School, Inc. (S.D. Ind. Aug. 26, 2009)

No. 1:08-cv-1714, 2009 WL 2750099, at *1 (teachers at

Christian school agreed to resolution of differences by

“following the biblical pattern of Matthew 18:15-17,” and

waived right to file lawsuit); Jenkins v. Trinity

Evangelical Lutheran Church (Ill. App. 2005) 825

N.E.2d 1206, 1212-13 (enforcing Lutheran Church

Document received by the CA Supreme Court.

doctrine mandating church-based arbitration of

disputes); Alla v. Moursi (Minn. Ct. App. 2004) 680 N.W.

569 (confirming arbitration award under Islamic law).

 Court enforcement of private agreements or

arbitration awards that limit rights is not state

action as to the contracting parties and therefore,

does not violate the Petitioner’s rights. Roberts v.

AT&T Mobility LLC (9th Cir. 2017) 877 F.3d

833 (telecommunication provider’s attempt to compel

arbitration was not state action on which customers

could base a claim for violation of their First

Amendment right to petition the government); Fed.

44
 Deposit Ins. Corp. v. Air Florida Sys., Inc. (9th Cir.

1987) 822 F.2d 833, 842 n. 9; Davis v. Prudential

Securities (11th Cir. 1995) 59 F.3d 1186, 1192-

1192; Elmore v. Chicago & Illinois Midland Ry. Co. (7th

Cir. 1986) 782 F.2d 94, 96.

 Courts have rejected Petitioner’s argument that

enforcing contractually-agreed upon religious

arbitration violates the free exercise clause.

Instead, courts hold that the parties’ express

Document received by the CA Supreme Court.

consent to religious arbitration precludes such a

challenge and constitutes “a knowing and

voluntary waiver of their rights to pursue

litigation in a secular court.” Encore Prods., Inc. v.

Promise Keepers (D. Colo. 1999) 53 F.Supp.2d 1101,

1112-13 (holding where “the parties agree” to refer

disputes to a “religious tribunal” it “is proper for a

district court to enforce their contract”) (emphasis

added); see also Elmora Hebrew Ctr., Inc. v. Fishman

(N.J. 1991) 125 N.J. 404, 416-17 (declining to reach free

exercise challenge to religious tribunal because the

party’s consent to the tribunal precludes such a

45
 challenge); Spivey v. Teen Challenge of Florida, Inc.

(Fla. App. 2013) 122 So.3d 986, 991-92, 994-95 (rejecting

representative of contracting party’s challenge to

religious arbitration involving Christian prayer because

representative “stands in the shoes” of the party who

expressly consented to the procedures).

 Refusal to enforce a religious arbitration

agreement, which governs the requirements for

membership in the Church’s ministry, violates

Document received by the CA Supreme Court.

Defendants’ First Amendment rights to church self-

governance and retention of its ministers. Our Lady

of Guadalupe School v. Morrissey-Berru (2020) 140 S.Ct.

2049, 2055 (“The First Amendment protects the right of

religious institutions ‘to decide for themselves, free from

state interference, matters of church government as well

as those of faith and doctrine.’”).

Similarly, there is no basis to reverse the Trial Court’s

finding that the agreements are not substantively or procedurally

unconscionable.

 The standard of review for the Trial Court’s

decision that the agreements are neither

46
 procedurally nor substantively unconscionable is

the substantial evidence standard because the

Trial Court’s determination was based on

decisions of fact. Lopez, supra, 39 Cal.App.5th at p.

317 (“[a] factual finding cannot be overturned on appeal

simply because the record contains ‘credible evidence’ to

the contrary.”); Davis v. Kozak (2020) 53 Cal.App.5th

897, 906 (“[W]here an unconscionability determination

‘is based upon the trial court’s resolution of conflicts in

Document received by the CA Supreme Court.

the evidence, or on the factual inferences which may be

drawn therefrom, we consider the evidence in the light

most favorable to the court’s determination and review

those aspects of the determination for substantial

evidence.’”).

 The Court of Appeal and this Court will be bound

by the Trial Court’s credibility determinations,

rejecting portions of Petitioner’s declaration as

conclusory and contradicted by undisputed facts

in the record. (3 EP 720-21.) Lopez, supra, 39

Cal.App.5th at p. 320 (“[T]he resolution of an

evidentiary conflict is within the sole province of the

47
trier of fact.”); Santa Clara County Corr. Peace Officers’

Assn., Inc. v. County of Santa Clara (2014) 224

Cal.App.4th 1016, 1027 (the rule of appellate deference

to the trial court’s credibility determinations is the same

for written declarations as for oral testimony).

 Applying these standards of review, Petitioner’s

unconscionability arguments, which are based on

cherry-picked “evidence” that was rejected by the

Trial Court, provide no basis to overturn the

Document received by the CA Supreme Court.

Arbitration Order. (3 EP 719-20.)

 In any event, Petitioner has attacked the

validity of her agreements as a whole by claiming

they were obtained by duress, and such

unconscionability attacks must be reserved for the

arbitrators. Buckeye Check Cashing, Inc. v. Cardegna

(2006) 546 U.S. 440, 449 (“regardless of whether the

challenge is brought in federal or state court, a

challenge to the validity of the contract as a whole, and

not specifically to the arbitration clause, must go to the

arbitrator.”)

48
V. CONCL USION

For the foregoing reasons , Defenda nts respectf ully request

the Court deny the Petition for Review.

DATED: Novemb er 19, SCHEP ER KIM & HARRIS LLP

2020
WILLIAM H. FORMAN
DAVID C. SCHEP ER
MARGA RETE.D AYTON

By: ~ ~
WILLIAM H. FORMAN

Document received by the CA Supreme Court.

Attorne ys for Defend ant and Real
Party in Interest Church of
Scientology Interna tional

DATED: Novemb er 19, JEFFER MANG ELS BUTLE R &

2020 MITCH ELL LLP
ROBERT E. MANGELS
MATTHEW D. HINKS

. HfNKS

Attorne ys for Defend ant and Real

Party in Interest Religious
Technology Center

49
 CERTIFICATE OF WORD COUNT

Pursuant to Rule 8.204(c)(1) of the California Rules of

Court and in reliance on the word count of the computer program

used to prepare this Answer, counsel certifies that the text of this

brief was produced using 13 point font and contains 7,593 words.

DATED: November 19, SCHEPER KIM & HARRIS LLP

2020
WILLIAM H. FORMAN
DAVID C. SCHEPER
MARGARET E. DAYTON

Document received by the CA Supreme Court.

By: ~ ~
WILLIAM H. FORMAN

Attorneys for Defendant and Real

Party in Interest Church of
Scientology International

50
DATED: Novem ber 19, JEFFE R MANG ELS BUTLE R &
2020 MITCHELL LLP
ROBE RT E. MANG ELS
MATT HEW D. HINKS

Attorn eys for Defend ant and Real

Party in Interes t Religio us
Techno logy Center

Document received by the CA Supreme Court.

51
 PROOF OF SERVICE
(C.C.P. §1013(a), 2015.5)

I, the undersigned, hereby declare under penalty of perjury

as follows: I am a citizen of the United States, and over the age of

eighteen years, and not a party to the within action; my business

address is 800 West Sixth Street, 18th Floor, Los Angeles, CA

90017. On this date, I served the interested parties in this action

the within documents: ANSWER TO PETITION FOR

REVIEW OF ORDER DENYING WRIT OF MANDATE via

the Court’s online True Filing system as follows:

Document received by the CA Supreme Court.

Robert W. Thompson
Thompson Law Offices
700 Airport Boulevard
Suite 160
Burlingame, CA 94019
bobby@tlopc.com
Jeffrey K. Riffer
Elkins Kalt Weintraub Reuben
Gartside LLP
10345 West Olympic Blvd.
Los Angeles, CA 90064
jriffer@elkinskalt.com
Graham E. Berry
Law Office of Graham E. Berry
3384 McLaughlin Ave.
Los Angeles, CA 90066-2005
grahamberryesq@gmail.com
Valerie T. McGinty
Certified Appellate Specialist,
State Bar
Law Office of Valerie T. McGinty
524 Fordham Road
San Mateo, CA 94402
valerie@plaintiffsappeals.com

I, the undersigned, also hereby declare under penalty of

perjury as follows: I am a citizen of the United States, and over the
age of eighteen years, and not a party to the within action; my
business address is 800 West Sixth Street, 18th Floor, Los Angeles,

52
business address is 800 West Sixth Street, 18th Floor, Los Angeles,
California 90017. On this date, I forwarded the within documents:
ANSWER TO PETITION FOR REVIEW OF ORDER
DENYING WRIT OF MANDATE to ASAP Attorney Service to
mail to:

Los Angeles County Superior Court (via USPS)

Central District, Stanley Mosk Courthouse, Dept. 37
111 North Hill Street
Los Angeles, CA 90012

Executed at Pasadena, California on November 19, 2020.

Document received by the CA Supreme Court.

Pamela Tanigawa

53